To: CYBERIA-L@LISTSERV.AOL.COM
Date: Thu, 4 Sep 1997 10:27:29 -0400
From: John Gregory <gregoj@GOV.ON.CA>
Subject: Uniform Electronic Evidence Act
The Uniform Law Conference of Canada has adopted in principle the text of
a Uniform Electronic Evidence Act, which is available with commentaries at
http://www.law.ualberta.ca/alri/ulc/current/eueea.htm[and below]. The
text (3 pp) and commentaries (9 pp) are downloadable in WP5.1.
"in principle" means "subject to consultation showing us serious errors".
I would be interested in hearing the views of members of this list, or of
anyone else with something to contribute, about the Act. Please feel free
to pass it on as a document in the public domain, ideally with a reference
to the Conference. A number of Canadian jurisdictions are interested in
legislating on this topic, so it would help if we got it right.
John G
...............
John D. Gregory
Ministry of the Attorney General - Ontario > Opinions are
720 Bay Street, Toronto, ON, Canada M5G 2K1 > personal not official
fax (416) 327-9505; also gregorjo@epo.gov.on.ca

Uniform Electronic Evidence Act

Definitions

1. In this Act,

(a) "data" means representations, in any form, of information or concepts.

(b) "electronic record" means data that is recorded or preserved on any medium
in or by a computer system or other similar device, that can be read or perceived
by a person or a computer system or other similar device. It includes a display,
printout or other output of that data.

(c) "electronic records system" includes the computer system or other similar
device by or in which data is recorded or preserved, and any procedures related
to the recording and preservation of electronic records.

Application

2. This Act does not affect the application of any common law or statutory
rule relating to the admissibility of documents or other records, except
for the rules relating to authentication and best evidence.

Authentication

3. Subject to this Act or any other Act of [the enabling jurisdiction] or
to an exception provided by the common law, the person seeking to introduce
an electronic record has the burden of proving its authenticity by evidence
capable of supporting a finding that the electronic record is what the person
claims it to be.

Best evidence rule

4. In any legal proceeding, the best evidence rule is satisfied in respect
of an electronic record on proof of the integrity of the electronic records
system in or by which the data was recorded or preserved.

Presumption of integrity

5. In the absence of evidence to the contrary, the integrity of the electronic
records system is proven if it is established that

(a) at all material times the computer system or
other similar device was operating properly or, if it was not, the fact of
its not operating properly did not affect the integrity of the electronic
record; and

(b) there are no other reasonable grounds to doubt
the integrity of the electronic records system.

Other applicable presumptions

6. In the absence of evidence to the contrary, the integrity of the electronic
records system is proven if it is established that

(a) the electronic record was recorded or preserved
by a party to the proceedings other than the party seeking to introduce it;
or

(b) the electronic record was recorded or preserved
in the usual and ordinary course of business by a person who is not a party
to the proceedings.
Proof by affidavit

7. The matters referred to in sections 5 and 6 may be established by an affidavit
given to the best of the deponent's knowledge or belief.

Standards

8. For the purpose of determining under any rule of law whether an electronic
record is admissible, evidence may be presented in respect of any standard,
procedure, usage or practice on how electronic records are to be recorded
or preserved, having regard to the type of business or endeavour that used,
recorded or preserved the electronic record and the nature and purpose of
the electronic record.

Repeal

9. [Repeal provisions which require retention of original after microfilming.]

Comments

Section 1

Comment:

(a) The definition of "data" ensures that the Act
applies to any form of information in an electronic record, whether figures,
facts, or ideas.

(b) "Electronic record" fixes the scope of the Act.
The record is the data. The record may be on any medium. It is "electronic"
because it is recorded or preserved in or by a computer system or similar
device. The Act is intended to apply, for example, to data on magnetic strips
on cards, or in smart cards. As drafted, it would not apply to telexes or
faxes (except computer-generated faxes), unlike the United Nations Model
Law on Electronic Commerce. It would also not apply to regular digital telephone
conversations, since the information is not recorded, but only transmitted
by or in a computer system or similar device, However, it would apply to
voice mail, since the information has been recorded or preserved in or by
a computer system. Likewise video records are not covered, though when the
video is transferred to a Web site it would be, as the recording or preservation
has been accomplished in or by a computer system. Information recorded on
paper by means of a typewriter would be a paper record and is not caught
by the definition of "electronic record", but once that paper record is captured
by electronic imaging technology, then the imaged form would constitute an
electronic record.

In short, not all data in "digital" form is covered.
A computer or similar device has to be involved in recording or preserving
the data,

QUESTION: Does this distinction (that is, recording
or preserving in or by a computer system or similar device) work in practice?
Where information can be readily transferred from non-digital to digital
form, should different rules of evidence apply depending on whether a computer
or similar device is involved in recording or preservation? Although any
thing that is not

recorded or preserved by or in a computer system or similar device is omitted
from this Act, they may well be admissible under other rules of law. This
Act focuses fairly narrowly on replacing the search for originality, proving
the reliability of systems instead of that of individual records, and using
standards to show systems reliability.

One will note that paper records that are produced
directly by a computer system, such as printouts, are themselves electronic
records, being just the means of intelligible display of the contents of
the record. Photocopies of the printout would be paper records subject to
the usual rules about copies, but the "original" printout would be subject
to the rules of admissibility of this Act.

(c) The system that produced an electronic
record will often include procedures for how all records, or electronic records,
are to be created and stored, including access controls, security features,
verification rules, and retention or destruction schedules. The Act makes
the reliability of the record-keeping system relevant to proving the integrity
of a particular record.

An electronic record is not part of the system that
produced it. Section 4 provides that the integrity of a record can be proved
by proving the integrity of the system that produced it. If the system included
the record itself, section 4 would not work.

Section 2

Comment:

As noted in the Consultation Paper, it is not necessary
to change the law of hearsay in order to ensure the proper admission of
electronic records. The admission of any record may depend on hearsay rules
such as the business records rule or the bank records rule, in some
jurisdictions. This Act does not change those rules.

Likewise recorded evidence may be subject to many
other rules, about privilege, about competence, about notice, about documents
found in the possession of an accused person, that are not affected by this
Act.

The Act is intended to affect existing law on
authentication and best evidence, however, as noted in the Comments to sections
3 and 4.

Section 3

Comment:

Section 3 codifies the common law rule on authentication
which applies equally to paper records. This formulation follows that set
out in the "Proposed Canada Evidence Act", the Uniform Evidence Act and the
U.S. Federal Rules of Evidence. It is also the common law position as stated
by the Supreme Court of Canada in U.S.A. v.
Shephard.See footnote 1 The proponent
needs only to bring evidence that the record is what the proponent claims
it is (e.g., "this record is an invoice"). This evidence is usually given
orally and is subject to attack, like any other.

The Act does not open an electronic record to attacks
on its integrity or reliability at this stage. That question is reserved
for the new "best evidence" rule. Logically the question of integrity could
be included in authentication, but the working group recommends that the
question be dealt with only once.

Section 4

Comment:

The best evidence rule generally requires that the
proponent of a record should produce the original record or the closest thing
available to an original. For reasons set out in the Consultation Paper,
the notion of "original" is not easily applicable to many electronic records.
The Act therefore dispenses with the need for an original, by substituting
another way of serving the purpose of the rule.

The purpose of the best evidence rule is to help
ensure the integrity of the record, since alterations are more likely to
be detectable on the original. The Act provides a different way to test the
integrity of the record: evidence of the reliability of the system that produced
the record. As noted in the Consultation Paper, it will usually be impossible
to provide direct evidence of the integrity of the individual record to be
admitted. System reliability is a substitute for record reliability.

The Act does not say expressly that the proponent
of an electronic record does not have to produce an original, but the
displacement of the usual best evidence rule will have that effect.

Even if there is an original of an electronic record,
as in the case of an electronic image of a paper document, the Act does not
require the production of the paper. Nor does it require that the original
have been destroyed before the electronic image becomes admissible. The Act
sets up a rule for admitting electronic records. Records retention policies,
for paper or electronic records, are beyond its scope, and should not be
determined by the law of evidence in any event. Someone who destroys paper
originals in the ordinary course of business, ideally in accordance with
a rational schedule, should not be prejudiced in using reliable electronic
versions of those records.

Section 5

Comment:

This section sets out a presumption of integrity
of the system, to satisfy the requirement of section 4. The presumption is
based on evidence that includes both the computer system that produced the
record and the record-keeping system in which it operates. Both are needed
to show reliability.

This does not mean that a simple computer record
needs the support of a sophisticated record-keeping system in order to be
admissible. A small business, for example, may have a computer with off-the-shelf
software and no "records management manual". The record-keeping system is
implied in the operation of the computer. It should be recognized, however,
that the integrity of records in such a system may be exposed to more successful
attack in court.

The results of consultation on this point supported
a fairly simple test of integrity at this stage. The integrity of most electronic
records is not disputed; they are admitted in evidence routinely. This Act
does not intend to make the process more difficult, or to provide grounds
for frivolous but possibly expensive attacks on otherwise acceptable records.
It does intend to point out the basic criteria on which integrity of an
electronic record can be judged.

This presumptive evidence of reliability may be brought
by anyone and about anyone's records. It is not limited to the proponent
of a particular record. So for example if one wanted to introduce a third
party's record, but that record was not produced in the ordinary course of
business and thus could not benefit from the presumption in section 6, one
could lead evidence of the system where that record was recorded or preserved,
to create the presumption in section 5.

Section 6

Comment:

This section deals with an electronic record obtained
from another party in the proceedings, or from someone who is not a party.
The record is presumed reliable. If it is not reliable, then the other person
has the opportunity to show the unreliability and rebut the presumption,
since that person knows his or her or its own record-keeping system better
than anyone else.

This section creates a presumption of reliability
of business records of non-parties to the proceeding. It is similar to a
provision of the Civil Code of Quebec, article 2838 (though that provision
applies only to "juridical acts"). It also serves the purpose of the "bank
record" provision in several Canadian evidence statutes, such as section
29 of the Canada Evidence Act. (This provision works with s. 2, which
preserves the hearsay aspect of bank record rule. This section supports the
reliability of the electronic bank record system.)

The purpose of the rule is to ensure the admissibility
of electronic records from non-parties whose record-keeping systems are not
susceptible to ready proof as part of the proceeding.

QUESTION: Is this rule too broad? Does it
make such records too easy to admit, given the risk that they may be unreliable?
If so, how does someone wanting to admit such records demonstrate the reliability
of the system that produced them? Should the presumption operate for a narrower
class of records, such as those in financial institutions?

The concept of business records here is intended
to apply broadly to enterprise records of organizations not devoted to making
a profit, such as governments or not-for-profit organizations.

Section 7

Comment:

This section allows the evidence to support the
presumptions in sections 5 and 6 to be put in by affidavit instead of by
oral evidence. The person making the affidavit may not know personally every
aspect of the record-keeping system, but if the person informs himself or
herself of the relevant information, then the affidavit will be acceptable.
Cross-examination on the affidavit may expose relevant gaps in the information,
of course. If doubt is cast on the reliability of the affidavit, then the
person presenting the electronic record may have to provide more detailed
support of the record-keeping system.

Section 8

Comment:

The Act makes the court (or other tribunal using
the statutory rule) consider the reliability of the record-keeping system,
either on the creation of the presumption or on its merits, if the presumptions
in sections 4 through 6 are rebutted. In either case, this section makes
relevant the adherence of that system to recognized standards for the kind
of record and the kind of business in question. For example, records managers
in some industries have established procedures or rules about how their kinds
of records are to be handled. The Canadian General Standards Board has adopted
a national standard on Electronic Imaging and Microfilm as Documentary Evidence.
International bodies such as ISO are also producing relevant standards.

This Act does not make compliance with such standards
obligatory to get electronic records admitted, but it makes them relevant
to the question of admissibility. Records managers seeking to create systems
that will produce records that can be admitted in evidence may take some
comfort in that rule.

The language of the section does not require that
the standards be external to the person whose records are in issue. One could
show compliance (or not) with one's own standards. Whether this would be
as effective as complying with more broadly based standards is a practical
question left to the records managers of the proponent of the evidence.

QUESTION: We have not mentioned the relevance
of compliance with standards in determining the probative value, i.e. the
weight, of the evidence. It is unusual for statutes to try to guide the court
in matters of weight. Once the evidence is admitted, the court may consider
a wide range of factors to give it its due. Should the Act mention the weight
of the evidence in connection with compliance with standards?

Section 9

Comment:

This Act asserts a general confidence in the use
of electronic records, if their integrity is sufficiently supported. During
consultations, it was suggested that current provisions in several evidence
statutes dealing with microfilmed records do not show a similar confidence,
though similar factors are in issue. Several statutes in Canada allow the
admission of microfilmed records, but still require that the original paper
record be kept for six years and produced on demand. These records are usually
those with the greatest legal effect, such as contracts, invoices, purchase
orders, and the like.

The ULCC believes that the law should allow people
to keep their records in the way that suits their business purposes best.
In other words, the law should generally be neutral about the medium in which
records are kept. Instead it should set out rules by which the law can apply
to records in different media, such as the rules about admitting electronic
records in this Act.

As a result, the ULCC recommends that the rules in
evidence statutes requiring the retention of paper originals of microfilmed
records should be repealed.

QUESTION: Do we have to say that the current
rules about the integrity of microfilmed records are sufficient? Or that
they be reexamined in the light of the principles of this Act?

Agreements about evidence

Comment:

Many businesses that deal with each other electronically
have made detailed agreements on the rules for handling electronic
communications, including the use of confirmation messages, the maintenance
of logs, and the like. These "trading partner agreements", as they are sometimes
called, frequently deal with matters of evidence. For example, they may forbid
a party from disputing the reliability of electronic records produced in
accordance with the agreement.

These agreements on matters of evidence have not
been clearly valid or enforceable in law. Some members of the ULCC believes
that they should be enforceable between the parties to them, and contrary
views were not received in the consultation.

However, it is the view of the working group that
the current provisions of the Act will allay the concerns that motivated
these trading partner agreements, by clarifying the basis on which electronic
records may be admitted.

Moreover, the basic rule of system reliability is
supplemented by section 8 on standards. This section would apply to the rules
(standards) in the trading partner agreements on how records should be managed
between the parties. Therefore no special provision is needed to enable the
parties to rely on their rules.

Footnote: 1
(1976), 30 C.C.C.
(2d) 424, per Ritchie J. for the majority of the Court